Holl v. ADK Bancorp, Inc.

On September 22, 2025, Plaintiff filed a voluntary dismissal of 5 Star Housing, and served only a nonconformed copy. (Declaration of Daniel I. Halimi, ¶ 3.) Nor does it appear that the superior court clerk served a document entitled “Notice of Entry” of dismissal or a filed-endorsed copy of the dismissal, or that any party served a document entitled, “Notice of Entry” of dismissal. Therefore, it appears that 5 Star Housing had 180 days after the date of entry of the dismissal, i.e., September 22, 2025, to serve and file the instant motion for attorney’s fees. As the instant motion was filed on

November 21, 2025, and served on November 21 and 24, 2025, it was timely filed and served.

Entitlement to Attorney’s Fees “[E]ach party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees. [Citations.]” (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.) Except as attorney’s fees are specifically provided for by statute, attorney’s fees are permitted by contract. Under Code of Civil Procedure section 1032, attorney’s fees are recoverable as costs when authorized by contract, statute or law. (Code Civ. Proc. § 1033.5(a)(10)(A)-(C).)

A prevailing party is entitled as a matter of right to recover costs in any action, except as otherwise expressly provided by statute. (Code Civ. Proc. § 1032.) Under Code of Civil Procedure section 1032, attorney’s fees are recoverable as costs when authorized by contract. (Code Civ. Proc. § 1033.5(a)(10)(A).)

Civil Code section 1717, subdivision (a) provides, “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civil Code § 1717(a).)

Civil Code section 1717(b)(1) states: “The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.” (Civil Code § 1717(b)(1).)

Civil Code section 1717(b)(2) provides, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for the purposes of this section.” Civil Code section 1717(b)(2) is construed as “barring recovery of attorney fees in pretrial dismissal cases whether those fees are sought on the basis of the contractual provision or under section 1717.” (Santisas v. Goodwin (1998) 17 Cal.4th 599, 613, 616.) “When a plaintiff files a complaint containing causes of action within the scope of section

1717 (that is, causes of action sounding in contract and based on a contract containing an attorney fee provision), and the plaintiff thereafter voluntarily dismisses the action, section 1717 bars the defendant from recovering attorney fees incurred in defending those causes of action, even though the contract on its own terms authorizes recovery of those fees.” (Id. at p. 617.) “This bar, however, applies only to causes of action that are based on the contract and are therefore within the scope of section 1717. If the voluntarily dismissed action also asserts causes of action that do not sound in contract, those causes of action are not covered by section 1717, and the attorney fee provision, depending upon its wording, may afford the defendant a contractual right, not affected by section 1717, to recover attorney fees incurred in litigating those causes of action.” (Ibid.)

The court retains jurisdiction to determine who is a prevailing party for the purposes of awarding attorney fees and costs following a voluntary dismissal. (Parrott v. Mooring Townhomes Ass'n, Inc. (2003) 112 Cal.App.4th 873, 877-879.) The court is to analyze which party prevailed on a practical level. (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.)

“ ‘[T]he [party] . . . seeking fees and costs “ ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ [Citation.]” ’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)

Here, Plaintiff’s Verified Complaint asserts causes of action for fraud-misrepresentation (third cause of action), financial elder abuse (fourth cause of action), cancellation of written instrument (fifth cause of action), and declaratory relief (sixth cause of action) against 5 Star Housing.

Paragraph 25 of the RPA entered into between Plaintiff and 5 Star Housing states, “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.” (Ex. 2 to Complaint, RPA at p. 9, ¶ 25.)

Paragraph 22A, which provides that the Parties agree to mediate any dispute or claim arising between them out of the RPA or any resulting transaction before court action, states, in part: “If, for any dispute or claim to which this paragraph applies, any Party (i) commences an action without first attempting to resolve the matter through

mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action.” (Ex. 2 to Complaint, RPA at p. 9, ¶ 22A.)

While 5 Star Housing cites to paragraph 25 of the RPA as authorizing attorney’s fees for Plaintiff’s tort claims in this action, 5 Star Housing does not address paragraph 22A at all, and presents no evidence showing that the exception provided in paragraph 22A does not apply such that it is entitled to attorney’s fees under paragraph 25.

As 5 Star Housing fails to establish that it is entitled to attorney’s fees under paragraph 25 of the RPA, the Court DENIES 5 Star Housing’s motion for attorney’s fees.

5 Star Housing to give notice.

Defendants, ADK Bancorp, Inc. dba Advance Estate Realty and Ngoc Kim Tran’s Motion for Attorney’s Fees Defendants, ADK Bancorp, Inc. dba Advance Estate Realty (“ADK”) and Ngoc Kim Tran (“Tran”), move for an order granting attorney’s fees and costs following trial in the amount of $18,217.83 for costs and $86,696 for attorney’s fees from June 2022 to the present, and $1,125 to prepare the instant motion and appear at the hearing on this motion.

The amounts referenced in the motion are not all consistent with the amounts set forth in the declaration supporting the motion. The Court relies on the amounts provided in the declaration.

ADK and Tran contend they are entitled to recovery of their costs and attorney’s fees under Code of Civil Procedure sections 1021, 1032(a)(4), 1032(b), and 1033.5(a)(10)(A), and Civil Code section 1717(a). They contend that they are the prevailing party as after trial on September 24, 2025, the Court found in their favor and against Plaintiff on the following causes of action: Second Cause of Action - Breach of Fiduciary Duty; Third Cause of Action – Fraud; Fourth Cause of Action - Financial Elder Abuse; Sixth Cause of Action - Declaratory Relief; and Seventh Cause of Action - Breach of Contract, such that the Court found that ADK and Tran were the prevailing parties as to Plaintiff’s Complaint, and thus, they are entitled to recovery of costs.

ADK and Tran additionally contend that they are entitled to attorney’s fees as prevailing parties under paragraph 18 of the Residential Listing Agreement, that Plaintiff’s

action against them was one “on a contract,” that Plaintiff did not attempt to mediate before filing a lawsuit against them and they did not have the opportunity mediate before being thrusted into this action, and that the Court should award the attorney’s fees they incurred totaling $86,696.00 from June 2022 (e.g., the date ADK retained counsel to defend this action) and September 24, 2025 (e.g., the date The Court found in favor of ADK against Plaintiff for their causes of action) in connection with their successful defense of this action. ADK and Tran further contend that they should be awarded fees for the instant motion, and that the requested rates are reasonable.

Attorney’s Fees “ ‘[T]he [party] . . . seeking fees and costs “ ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ [Citation.]” ’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)

Paragraph 18 of the Residential Listing Agreement between Plaintiff and ADK, and signed by Tran, states: “In any action, proceeding or arbitration between Seller and Broker to enforce the compensation provisions of this Agreement, the prevailing Seller or Buyer shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker, except as provided in paragraph 22A.” (Ex. 1 to Complaint, Residential Listing Agreement, at p. 4, ¶ 18.)

Paragraph 22A, which provides that the Parties agree to mediate any dispute or claim arising between regarding the obligation to pay compensation under the agreement before resorting to arbitration or court action, states, in part: “If, for any dispute or claim to which this paragraph applies, any Party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.” (Ex. 1 to Complaint, Residential Listing Agreement, at p. 5, ¶ 22A.)

Although ADK and Tran contend in the motion that Plaintiff did not attempt to mediate before filing a lawsuit against them, and that they did not have the opportunity to mediate before being thrust in this action, as well as that “the lack of stability from Plaintiff’s side made it difficult to set up mediation and proceed with the case, . . . .”, no evidence is submitted to support these assertions. (ROA 445, ADK and Tran’s Motion, 5:27-6:1-

10.) As a result, ADK and Tran fail to show that exception provided in paragraph 22A does not apply such that they are entitled to attorney’s fees under paragraph 18 of the Residential Listing Agreement.

As ADK and Tran fail to establish they are entitled to attorney’s fees under paragraph 18 of the Residential Listing Agreement, the Court DENIES ADK and Tran’s motion for attorney’s fees.

Costs As to costs, “ ‘[t]he right to recover any of the costs of a civil action “is determined entirely by statute.” ’ [Citation.]” (Charton v. Harkey (2016) 247 Cal.app.4th 730, 737 (“Charton”).) “ ‘Section 1032 governs the award of costs of trial court litigation.’ [Citation.]” (Ibid.) The prevailing party is entitled to costs as a matter of right in any action or proceeding, except as otherwise provided by statute. (Code Civ. Proc. § 1032(b).) “Section 1032, subdivision (a)(4), defines who is the prevailing party entitled to costs,” and the first sentence of that subdivision “ ‘describes four categories of litigants who automatically qualify as prevailing parties . . . .’ [Citations.]” (Charton, supra, 247 Cal.App.4th at p. 737.)

A “prevailing party” is defined to include “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not ....” (Code Civ.

Proc. § 1032(a)(4).)

Here, Plaintiff’s Verified Complaint asserts causes of action for breach of fiduciary duty (second cause of action), fraud-misrepresentation (third cause of action), financial elder abuse (fourth cause of action), declaratory relief (sixth cause of action), and breach of contract (seventh cause of action) against ADK and/or Tran. On September 24, 2025, after a court trial, the Court found in favor of Defendant against Plaintiff on the second cause of action for breach of fiduciary duty, third cause of action for fraud, fourth cause of action for financial elder abuse, sixth cause of action for declaratory relief, and seventh cause of action for breach of contract. (ROA 436.) As Plaintiff did not recover any relief against ADK and Tran, ADK and Tran are the prevailing parties and entitled to costs.

“Section 1033.5, subdivision (a), identifies the specific cost items a prevailing party may recover as a matter of right, . . . . Section 1033.5, subdivision (b), identifies specific cost items that a prevailing party may not recover, . . . . Section 1033.5, subdivision (c)(4), grants the trial court discretion to award a cost item that is neither allowed under subdivision (a) nor prohibited under subdivision (b).” (Charton, supra, 247 Cal.App.4th at pp. 738-739.)

“All costs awarded to a prevailing party must be (1) incurred by that party, whether or not paid; (2) ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation’; and (3) reasonable in amount. [Citations.]” (Charton, supra, 247 Cal.App.4th at p. 739.)

“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (“Jones”).) Statements in points and authorities and declaration of counsel are insufficient to rebut the prima facie showing. (Jones, supra, 63 Cal.App.4th at p. 1266.) For items that are properly objected to, the burden of proof is on the party claiming them as costs. (Ibid.)

“There is no requirement that copies of bills, invoices, statements, or any such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. [Citation.] Once this occurs, the issue becomes whether the required documentation must be of evidentiary quality.” (Jones, supra, 63 Cal.App.4th at p. 1267.)

Here, ADK and Tran filed a Memorandum of Costs (Summary) and Memorandum of Costs (Worksheet) concurrently with the motion for attorney’s fees on November 12, 2025, and these documents are also attached to the declaration filed in support of the motion. The Memorandum of Costs is signed by ADK and Tran’s counsel and claims the following items: 1. Filing and motion fees - $2,167.71 4. Deposition Costs - $745 6. Attachment expenses - $3,127.46 8. Witness fees - $4,823 11. Court reporter fees as established by statute - $4,670.75 12. Interpreter fees - $2,350

13. Models, enlargements, and photocopies of exhibits - $281.41 15. Other - $82.50

(ROA 447, Declaration of Jason Murphy, ¶ 4, Exs. 1 and 2.)

Based on the Court’s calculations, the total costs for these items amount to $18,247.83, not $18,217.83, as referenced in the declaration.

The costs for Item Nos. 1, 4, 6, 8, 11, 12, and 13 appear on their face to be proper charges. There is no opposition, and Plaintiff fails to show that any of the claimed costs were not reasonable or necessary. The Court GRANTS costs in the amount of $18,165.33 for these items.

However, “Other” costs in the amount of $82.50 are for “Court Minute Order Copies,” and do not appear on its face to be a proper charge. (ROA 443.) As there is no evidence showing that these copies were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, the Court DENIES these costs.

ADK and Tran to give notice.

Defendant, My Groups, Inc.’s Motion for Attorney’s Fees Defendant, My Groups, Inc. (“My Groups”), moves for an order awarding it attorney’s fees in the sum of $91,554 and costs incurred pursuant to the Memorandum of Costs in the amount of $5,946.58.

Attorney’s Fees “[E]ach party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees. [Citations.]” (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.) Except as attorney’s fees are specifically provided for by statute, attorney’s fees are permitted by contract. Under Code of Civil Procedure section 1032, attorney’s fees are recoverable as costs when authorized by contract, statute or law. (Code Civ. Proc. § 1033.5(a)(10)(A)-(C).)

The court retains jurisdiction to determine who is a prevailing party for the purposes of awarding attorney fees and costs following a voluntary dismissal. (Parrott v. Mooring Townhomes Ass'n, Inc. (2003) 112 Cal.App.4th 873, 877-879.) The court is to analyze which party prevailed on a practical level. (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.)

“ ‘[T]he [party] . . . seeking fees and costs “ ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ [Citation.]” ’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)

Here, My Groups relies on the provisions of the Residential Purchase Agreement (“RPA”) that are at issue in 5 Star Housing’s motion, asserting that 5 Star Housing assigned the RPA to My Groups who paid the agreed price and closed escrow. (ROA 460, My Groups’ Motion, 3:6-7, 4:18-5:2.)

The Verified Complaint alleges that on or about October 24, 2021, 5 Star Housing executed an Assignment of Agreement Addendum that assigned its right to purchase the subject property to My Groups. (Complaint, ¶ 24, Ex. 2.)

Paragraph 25 of the RPA states, “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.” (Ex. 2 to Complaint, RPA at p. 9, ¶ 25.)

Paragraph 22A, which provides that the Parties agree to mediate any dispute or claim arising between them out of the RPA or any resulting transaction before court action, states, in part: “If, for any dispute or claim to which this paragraph applies, any Party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action.” (Ex. 2 to Complaint, RPA at p. 9, ¶ 22A.)

The motion argues that Plaintiff commenced this lawsuit on April 29, 2022, without seeking to mediate the matter with any of the Defendants including My Groups. (ROA 460, My Groups’ Motion, 4:21-5:4.) As My Groups fails to establish that the exception provided in paragraph 22A does not apply such that it is entitled to attorney’s fees under paragraph 25, it fails to establish that it is entitled to attorney’s fees under paragraph 25 of the RPA. Thus, the Court DENIES My Groups’ motion for attorney’s fees.

To the extent that My Groups argues that it is entitled to attorney’s fees as the prevailing party on a motion to expunge lis pendens, My Groups fails to discuss the statute cited in the notice, Code of Civil Procedure section 405.38, and fails otherwise discuss this issue and establish this is the case. The court may “‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which [a party] reached the conclusion [he or she] wants [the court] to adopt.’” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 citing City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.)

Costs The prevailing party is entitled to costs as a matter of right in any action or proceeding, except as otherwise provided by statute. (Code Civ. Proc. § 1032(b).) “Section 1032, subdivision (a)(4), defines who is the prevailing party entitled to costs,” and the first sentence of that subdivision “ ‘describes four categories of litigants who automatically qualify as prevailing parties . . . .’ [Citations.]” (Charton, supra, 247 Cal.App.4th at p. 737.) A “prevailing party” is defined to include “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.

If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not ....” (Code Civ. Proc. § 1032(a)(4).)

Here, My Groups’ counsel provides that they participated in the three day trial, and obtained a favorable monetary award for My Groups on its Cross-Complaint. (Declaration of Richard Wynn, ¶ 5.) In addition, on September 22, 2025, a request for dismissal, without prejudice, of the Complaint as to Defendant My Groups was entered. (ROA 427.)

Based on the foregoing, a dismissal was entered in favor of My Groups, and My Groups obtained a net monetary recovery. Thus, My Groups is the prevailing party and entitled to costs.

My Groups filed a Memorandum of Costs (Summary) and Memorandum of Costs (Worksheet) concurrently with the motion for attorney’s fees on November 24, 2025. The Memorandum of Costs is signed by My Groups’ counsel and claims the following items:

1. Filing and motion fees - $636.84 6. Attachment expenses - $1,025 11. Court reporter fees as established by statute - $3,497.25 13. Models, enlargements, and photocopies of exhibits – $562.82 14. Fees for electronic filing or service - $224.67 (ROA 472, Memorandum of Costs.) The costs for Item Nos. 1, 6, 11, 13, and 14 appear on their face to be proper charges. There is no opposition, and Plaintiff fails to show that any of the claimed costs were not reasonable or necessary. The Court GRANTS claimed costs as requested in the amount of $5,946.58. My Groups to give notice.

Moving party to give notice as to all motions. 105 Sullivan vs. Santa Ana Unified School District, 24-01431153 Demurrer to Second Amended Complaint Defendants, Santa Ana Unified School District (“SAUSD”) and Mayra Helguera (“Helguera”) (collectively, “Defendants”), move for an order sustaining a demurrer to the Second Amended Complaint (“SAC”) of Plaintiff, Adrienne Sullivan (“Plaintiff”).

Defendants contend that the two causes of action in Plaintiff’s SAC are barred as Plaintiff failed to timely exhaust administrative remedies, and that the first cause of action for discrimination based on gender in violation of FEHA fails to state facts sufficient to constitute a cause of action.

Failure to Timely Exhaust Administrative Remedies Defendants contend that Plaintiff has not and cannot satisfy the exhaustion of administrative remedies as Plaintiff failed to timely file a FEHA complaint with the Civil Rights Department (“CRD”) pursuant to Government Code section 12960(e)(5). Defendants assert that Plaintiff failed to file her FEHA complaint within the threeyear statute of limitations, that Plaintiff’s own allegations establish that her last day of employment with the District was June 30, 2020, and that as Plaintiff did not file her CRD complaint until October 3, 2023, more than three years after her employment ended, her claims are barred.

Defendants assert that Plaintiff may only pursue conduct occurring on or after October 3, 2020, but that the SAC alleges adverse conduct occurring only between June 2019 and Plaintiff’s separation date of June 30, 2020 such that all alleged conduct falls outside the applicable three-year statutory period. Defendants also assert that as a matter of law, any alleged misconduct occurring after that June 30, 2020, including the District's post-separation risk-management investigation, cannot constitute an "unlawful employment practice" under FEHA and cannot toll or extend the statute of

limitations. FEHA's limitations period runs from the date of the alleged employment practice, not from later administrative activity unrelated to the plaintiff's employment.

Plaintiff contends that Defendants’ argument ignores the continuing violation doctrine, which permits a plaintiff to pursue claims arising from a pattern of related discriminatory acts even if some acts fall outside the limitations period, provided that at least one act occurs within the limitations period, and that CRD complaint lists November 2, 2021 as an adverse action date. Plaintiff contends that at this pleading stage, it is premature to conclude that the administrative complaint failed to exhaust remedies for the earlier harassment and discrimination allegations.

“A demurrer can be sustained based on the statute of limitations or other limitations period only if the facts alleged in the complaint, or matters of which judicial notice is taken, disclose ‘ “clearly and affirmatively” ’ that the cause of action is barred. [Citation.]” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 207.)

Government Code section 12960(e)(5) states, “[a] complaint alleging a violation of Section 51.9 of the Civil Code or any other violation of Article 1 (commencing with Section 12940) of Chapter 6 shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.” (Govt. Code § 12960(e)(5).) “For the purposes of this section, filing a complaint means filing an intake form with the department and the operative date of the verified complaint relates back to the filing of the intake form.” “If the administrative complaint must be filed within one year ‘after’ the unlawful practice—here, a discharge—‘occurred,’ then for the purpose of that complaint, the administrative cause of action must accrue and the statute of limitations must run from the time of actual termination.” (Romano v.

Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493.) The period specified in the statute begins to run when the administrative remedy accrues, which is the occurrence of the unlawful practice. [Citation.] (Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 940, 945 [applying the then one-year period specified in Government Code section 12960].)

“An employee who wants to bring an action under FEHA must exhaust the administrative remedy provided by the statute by filing a complaint with the Civil Rights Department and obtaining from the Department a notice